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News on the Lawyers and Legal Professionals of TexasFri, 24 May 2019 14:56:06 +0000en-UShourly1https://wordpress.org/?v=4.9.10Best interest of the child under the Individuals With Disabilities Education Acthttps://blog.texasbar.com/2019/03/articles/articles/best-interest-of-the-child-under-individuals-with-disabilities-education-act/
Fri, 01 Mar 2019 16:00:17 +0000https://blog.texasbar.com/?p=11845Continue Reading]]>It is a timeless and eternal verity that we all cherish our children and seek to ensure their overall well-being in every facet of their lives and stage of development. No sacrifice is too great to achieve that paramount aim. In the context of family law and the dissolution of marriage where children are involved, the summum bonum of all such cases is to arrive at a resolution that serves the best interest of the child, as that legal lodestar is defined in Tex. Fam. Code § 153.002: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

This legal standard is more poignant and urgent when children with disabilities are seeking educational opportunities under the federally mandated law of the Individuals with Disabilities Education Act, or IDEA (IDEA was formerly the Education for All Handicapped Children Act, or EHA). This article will examine Texas court opinions related to the overarching themes of this broad, expansive, comprehensive, and “subjectively inclined to interpretation” law. The central themes upon which Texas courts have opined range from what constitutes a Free Appropriate Public Education, or FAPE; interpretations of a Least Restrictive Environment, or LRE, (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114); due process rights of parents of children with disabilities; judicial deference to school boards and educators when crafting Individualized Educational Plans or Programs, or IEPs, for students who have been assessed as having learning disabilities; and placement issues. Any detailed explanation into other IDEA-related themes is beyond the scope of this article.

History
On a national level, prior to 1975, courts rarely mentioned children with disabilities and their right to public education. Pre-1975, educators would make unilateral decisions often without any input or consultation with the parents of children suspected of having learning and other disabilities in determining the manner in which children with disabilities would best be served educationally.

In 1975, Congress passed IDEA (20 U.S.C. §§ 1400-1482). Influenced by the language of the landmark decision of Brown v. Board of Education, (347 U.S. 483, 74 S. Ct. 686 (1954)) the momentous words of the Supreme Court would serve as the backdrop to the passage of IDEA: “[E]ducation is perhaps the most important function of state and local governments,” (Id. at 493). The unanimous Supreme Court further stated that: “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms,” (Id.). Notably, this language has been cited in innumerable cases nationwide, including cases involving students with disabilities demanding equal educational opportunities. After enactment and passage of IDEA, every state had to abide by IDEA’s mandate to evaluate, test, and place any suspected students with disabilities in educational settings that provided a FAPE in an LRE. Moreover, post determination that a student had learning disabilities, an IEP had to be established by the school board and the child’s educators, in collaboration with the child’s parents and other professionals to serve the best interest of the student based on his or her specific educational needs.

Under IDEA, “[T]he schoolchild and his or her parents are entitled to be involved in the process of developing an IEP,” ((20 U.S.C. § 1401(a)(20) (Under 20 U.S.C. § 1415, the statute mandates collaboration between educators and parents/guardians when developing the IEP via numerous, well-defined, procedural safeguards. The IEP must be reviewed at least annually (20 U.S.C. § 1414(a)(5); Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 129 n.3 (5th Cir. 1993)). Additionally, 20 U.S.C. § 1414 mandates that the IEP be created by an “individualized education program team” comprised of parents, educators, and disability professionals.

Congress, in enacting IDEA, was unequivocal in its purport that collaboration between the parents of the child with disabilities and various school officials was an indispensably pivotal and crucial element in crafting an IEP that would best serve his or her specific needs as well as deliver optimal results (20 U.S.C. §§ 1400-1482).

As broad and complex as the law of IDEA may be, nowhere is this collaborative process more compelling or in demand than the crafting of an IEP that specifically addresses the learning needs of a child with disabilities and how to successfully approach those unique learning challenges. The crafting of the IEP must ensure in its substance, content, and application that a FAPE in an LRE has been accomplished. In this regard, the author contends that it is an unforgiving, unwelcome, and harsh reality that Congress’ generalizations of the terms “appropriate” and “least restrictive” lends itself to multiple, subjective, and disparate interpretations that frequently give rise to differing opinions and conflict between the educators and the parents of children with disabilities.

Indisputably, the crafting of the proper IEP for children with disabilities is paramount and potentially outcome determinative in whether the student’s IEP will confer sufficient educational benefit to allow him or her to make academic and educational progress.

For example, in Teague, the 5th Circuit was tasked with opining the sufficiency of an IEP that was challenged as to its merits by the parents of the child in question. The court held that the IEP was sufficiently substantive and the student “received significant benefit from his public school placement.” (In Teague, the 5th Circuit noted: “As a condition of federal funding, IDEA requires states to provide all children with a “free appropriate public education,” 20 U.S.C. § 1412(1), with the statutory term “appropriate” designating education from which the schoolchild obtains some degree of benefit. (See Board of Educ. v. Rowley, 458 U.S. 176, 200, 102 S. Ct. 3034, 3047, 73 L. Ed. 2d 690 (1982). See 20 U.S.C. § 1412(5); Rowley, 458 U.S. at 202, 102 S. Ct. at 3049; Sherri A.D. v. Kirby, 975 F. 2d 193, 206 (5th Cir. 1992)). The 5th Circuit explained the underlying rationale for IDEA, reflecting the best interest of the child as it is also reflected within Brown:

“IDEA was intended to redress a long history of discrimination by public schools against disabled children. Isolation of a schoolchild or reduction of the quality or amount of a child’s educational programming solely for the convenience of staff violates IDEA.” See, e.g., Rowley, 458 U.S. at 179, 189, 102 S. Ct. at 3037, 3042 (Congress’ intent, in passing EHA, was to prohibit schools which receive federal funds from discriminating against disabled children) (Teague, 999 F.2d 127, 129 n.4 (5th Cir. 1993)).

To reiterate, Texas courts, in evaluating IDEA-related cases, have applied the “best interest of the child” legal standard in delivering its opinions. In Christopher M. v. Corpus Christi Indep. Sch. Dist., the court was tasked to opine whether a shortened school day due to the nature of the child’s disability was a violation of the FAPE portion of IDEA. The court in applying the “best interest of the child” legal barometer, stated: The board was not required to provide a full day of educational programming for the student with multiple disabilities whose educational programming consisted of basic sensory stimulation, since it was not in his best interest (933 F.2d 1285 (5th Cir. 1991)).

Further, in discussing the original mandate of EHA the precursor to IDEA, the court reiterated that it was instituted in order:

“[t]o create an educational program tailored to the unique needs of each child. The drafters of EHA were guided by the principle that “each child must receive access to a free public program of education and training appropriate to his learning capabilities.” Rowley imposes an obligation on the states that the IEP must be “reasonably calculated to enable the child to receive educational benefits,” and “In reviewing the appropriateness of an IEP, [the] court has previously considered these very factors: “our analysis is an individualized, fact-specific inquiry that requires us to examine carefully the nature and severity of the child’s handicapping condition, his needs and abilities, and the school’s response to the child’s needs.” (See Rowley, 458 U.S. 176, 189, 102 S. Ct. 3034, 3042, 73 L. Ed. 2d 690 (1982); and Christopher M., 933 F.2d 1285, 1289 n.7 (5th Cir. 1991)).

In sum, despite Congress’ intent to serve the educational needs of children who qualify for special education services, this area of the law, due to its broad mandates, continues to be fertile ground for litigation, which arguably does not serve the best interest of the child due to its emotionally charged, protracted, combustible, and costly process.

Ultimately, it is this author’s opinion that in the context of meeting the educational needs of children with disabilities, it is imperative that parents and educators set aside any animus, pre-conditioned biases they may harbor and work together in a spirit of compromise, compassion, equanimity, and reasonableness with the singular and ennobling aim of serving the best interest of the child.

Kamran Mashayekh is a partner in Mashayekh & Chargois in Houston. He has practiced law for nearly 30 years in Texas in the area of civil litigation. Mashayekh received his law degree from South Texas College of Law and has testified before state legislatures in assisting them in crafting anti-predatory lending laws.

]]>Beware non-compete agreements in Louisiana: ‘Toto, I’ve a feeling we’re not in Texas anymore’https://blog.texasbar.com/2019/02/articles/articles/beware-non-compete-agreements-in-louisiana-toto-ive-a-feeling-were-not-in-texas-anymore/
Thu, 28 Feb 2019 16:00:46 +0000https://blog.texasbar.com/?p=11840Continue Reading]]>Multi-state non-compete agreements are commonplace. Enforcing these agreements is generally not a problem, as most states use a reasonableness test for determining their enforceability. Texas law requires an evaluation of reasonableness as to time, geographical area, and activity being restrained, not unlike most other states (Tex. Bus. and Com. Code § 15.50). If the reasonableness test is met, these agreements can be enforceable. Not so in Louisiana.

Companies and individuals outside of Louisiana seeking to do business there are often surprised by Louisiana’s non-compete law. Louisiana does not use a reasonableness test to determine the validity of non-compete agreements. To the contrary, contracts that restrain someone’s right to work are presumed to be invalid in Louisiana. Moreover, Louisiana law prevents efforts to avoid the applicability of Louisiana’s strict law in contractually providing for the applicability of another state’s law in a non-compete agreement involving an employer/employee relationship. In short, in seeking to enforce a non-compete agreement in Louisiana, Louisiana law cannot be avoided.

The validity of non-compete agreements in Louisiana is strictly controlled by a single statutory provision—Louisiana Revised Statutes § 23:921—and its judicial interpretation. Louisiana Revised Statutes § 23:921(A)(1) begins with the general prohibition against any agreement whereby “anyone is restrained from exercising a lawful profession, trade, or business,” unless one of the narrow exceptions to the general prohibition contained therein is satisfied. It provides:

“Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.”

Louisiana has long had a strong public policy against non-compete agreements. Because these agreements are in derogation of the common right—the right to work in your chosen field—Louisiana jurisprudence has narrowly construed the exceptions to the general prohibition listed in Louisiana Revised Statutes § 23:921. These exceptions, for the most part, are based upon relationships. The list of exceptions include the employee/employer relationship, the sale of the goodwill of a business, the dissolution of a partnership, the franchisor/franchisee relationship, the employer/computer employee relationship, the corporation/shareholder relationship, the partnership/partner relationship without consideration of any possible dissolution, and the limited liability company/member relationship.

Once it is demonstrated that a particular non-compete agreement falls within one of the listed exceptions, most Louisiana courts require a valid non-compete agreement to contain an area of prohibition described by parishes, municipalities, or parts thereof, together with a term of no longer than two years from date of termination of the relationship. These requirements are derived directly from statutory language.

While not contained within the statute, some Louisiana courts also require a valid non-compete agreement to define narrowly and accurately the business in which the individual is prohibited from competing. Other Louisiana courts deny the need for this additional non-statutory-based requirement. If the business is defined within the agreement, however, the definition must be narrow and accurate.

In further protecting the right of employees to work in their chosen field of employment, Louisiana Revised Statutes § 23:921 prohibits a contract of employment from designating by contractual provision the applicability of another state’s law unless the employee re-confirms such choice of law after the occurrence of the incident which is the subject of the dispute. Thus, once an employee is terminated and begins competing with his or her ex-employer, the applicability of the provision in the non-compete agreement selecting another state’s law is only valid if the employee agrees to it again, once his or her ex-employer complains about the alleged violation of the non-compete agreement.

Louisiana Revised Statutes § 23:921(2) provides:

The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee’s contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.

As demonstrated herein, drafting multi-state non-compete agreements that include Louisiana are problematic. An enforceable non-compete agreement in Louisiana requires much more than reasonableness. All requirements of Louisiana Revised Statutes § 23:921 must be met for a valid non-compete agreement in Louisiana. One approach is to exclude Louisiana from your multi-state non-compete agreements, with a separate agreement for Louisiana, compliant with Louisiana law. Doing so will protect your client’s business in today’s competitive marketplace.

Jude C. Bursavich is a partner in the Baton Rouge, Louisiana, office of Breazeale, Sachse & Wilson. He practices in the area of complex business and commercial litigation and has concentrated on business protection issues for over 25 years. Bursavich has extensive experience in drafting and litigating non-compete agreements throughout Louisiana. He represents both individuals and local and national companies in business matters.

]]>Texas Bar College to honor members with awardshttps://blog.texasbar.com/2016/07/articles/conference/texas-bar-college-to-honor-members-with-awards/
Fri, 08 Jul 2016 20:39:20 +0000http://blog.texasbar.com/?p=6118Continue Reading]]>Texas Bar College will honor members with three major awards to be presented at 2 p.m. on July 15 at the 18th Annual Texas Bar College Summer School Course at the Moody Gardens Hotel in Galveston.

The Jim Bowmer Professionalism Award given annually to an outstanding Bar College member based on achievement or contribution to professionalism will be presented to Richard Spencer with Dow Golub Remels & Beverly LLP of Houston. The honor comes with a cash award of $1,000, which can be given to the law school of the recipient’s choice — in this case the University of Houston Law Center.

Spencer is a Life Fellow of the Texas Bar College and the American College of Real Estate Lawyers. He is board certified in real estate law and is a past chair of the State Bar of Texas Real Property, Probate and Trust Law Section. He is a member of the Texas Board of Legal Specialization Real Estate Advisory Commission and a Fellow of the Texas Bar Foundation.

Prather focuses her practice on First Amendment, intellectual property and media and entertainment litigation and appeals. Prather was the lead author of three significant pieces of First Amendment legislation in Texas: the reporters’ privilege statute, the anti-SLAPP statute, and the Defamation Mitigation Act.

Bland was appointed to the First Court of Appeals in 2003 and was elected in 2004, 2006, and 2012. She serves on the Texas Supreme Court’s Rules Advisory Committee and its Commission to Expand Civil Legal Services. She is the chair of the State Bar of Texas Oversight Committee on the Texas Pattern Jury Charges. The Texas Association of Civil Trial and Appellate Specialists named her appellate judge of the year in 2007 and 2015.

The Steve Condos Award for the most CLE hours earned by a new member to the College will be presented to Russell Blair Ross of Houston for 700-plus hours of CLE reported in 2015.

Russell Ross secured his law degree from Emory University and his MBA from Rice University. Ross’s non-legal work experience includes marketing and community development roles with the NFL’s Tennessee Titans and Houston Texans. He spent his 2L summer with the Harris County District Attorney’s Office and MBA summer with Pantheon of Women Producers. He is currently available “for the perfect employment opportunity.”

For more information on the awards and to see the 2014 winners, go here.

]]>‘Never Quit. Never.’ A Tribute to Buck Fileshttps://blog.texasbar.com/2016/05/articles/people/never-quit-never-a-tribute-to-buck-files/
Thu, 05 May 2016 15:46:30 +0000http://blog.texasbar.com/?p=5738Continue Reading]]>Editor’s note: This column originally appeared in The Voice for the Defense and is republished with permission. Read the full May 2016 issue.

There is a blithe irony in our honoring Buck for his 200th article for this publication—a man of few words for having expressed literally thousands of them.

In fact, if you know Buck, you’ve likely had entire conversations when he used only three: “Never Quit. Never.” Buck calls that phrase his “mantra,” and it is profoundly self‐expository. In fact, it is its speaker in sum.

Authoring 200 articles says something about steadfastness. Then again, everything Buck does says something about steadfastness. He has practiced law for over 50 years. With the same law partner for 40 years. While married to the same remarkable woman for 53 years. And serving as a faithful member of the same church for 50 years.

I am baffled—actually awed—by how lawyers who practice criminal law—the people who read and write for this publication—steadfastly remain the people they want and need to be in light of what they must encounter. Buck embodies this. After seeing so much wickedness, remaining so decent; observing so much duplicity, keeping so honorable; dealing with so much inconstancy, abiding in such faithfulness.

Buck extracts from his experiences—even the challenging ones—something redemptive. Because of his service as a Marine first lieutenant in Vietnam, Buck visits his jailed clients every Christmas morning. “I spent Christmas 1965 outside of Da Nang; I know what it’s like to be away from family.” Additionally there are his weekly visits “so they know there’s someone who cares about them.” Not surprising that one of the most formative of his experiences was provided by an institution whose motto is

Semper Fi.

Is there a person more generous with his friendship? A fellow State Bar board member asked me several years ago: “You and Buck are such great friends, how long have you known each other?” Glancing at my watch: “About 45 minutes,” I replied.

Campaigning for State Bar president‐elect is punishing—doubly so when you live two hours from the nearest airport. During March 2011, Buck spent 25 nights away from his home in Tyler as he campaigned across the state. Four years later, when it was my turn in the barrel, he left the same phone message every evening: “Never quit. Never.”

It is so easy to become nothing but the servant of our experiences, instead of their master. Or to blend in by donning the expedient camouflage of an increasingly relativist culture in which our highest principles have the durability of gnats. Against all that, a useful corrective is Buck’s singular steadfastness:

He has served one country

Supported one firm
Advanced one profession
Nurtured one family
Loved one woman
Worshipped one Lord

If we think people like Buck come around for no reason, we do so at our profound peril. People like Buck remind us that despite all that life exposes to, inflicts upon, and exacts from us, we must steadfastly remain the people we want and need to be. Except that Buck would say it more directly.

He’d say, “Never Quit. Never.”

Frank E. Stevenson, president-elect of the State Bar of Texas, is a partner in the Dallas office of Locke Lord. He chaired the State Bar Board of Directors in 2012–2013 when Buck Files was State Bar president.

]]>Facing the stigma of attorney substance abusehttps://blog.texasbar.com/2016/04/articles/texas-bar-journal/facing-the-stigma-of-attorney-substance-abuse/
Tue, 19 Apr 2016 12:00:39 +0000http://blog.texasbar.com/?p=5500Continue Reading]]>The Washington Post recently published this column by New York writer and lawyer Lisa F. Smith on the stigma of drug addiction in the legal profession and the latest research on just how many attorneys suffer from substance abuse.

The whole column is worth reading, but here’s an excerpt:

A newly released study conducted by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs reports an alarming statistic: Up to 21 percent of licensed, employed lawyers qualify as problem drinkers; for lawyers under age 30, it’s 31.9 percent. By comparison, only 6.8 percent of all Americans have a drinking problem. In addition to questions related to alcohol, participants were asked about their use of licit and illicit drugs, including sedatives, marijuana, stimulants and opioids: Seventy-four percent of those who used stimulants took them weekly.

Smith calls for a “structured and ongoing” conversation about substance abuse among attorneys. Newer lawyers especially stand to benefit, she writes.

Yes, it’s critical for a new lawyer to learn best practices for working with clients and how to get a duplicating job handled overnight. But it’s just as critical for them to know where to go when they feel overwhelmed or when they find themselves having those few extra drinks they never felt they needed before.

The Texas Lawyers’ Assistance Program provides confidential help for lawyers, law students, and judges who have problems with substance abuse or mental health issues. TLAP is available anytime at 1-800-343-8527.

]]>Civility in Lawyers’ Writinghttps://blog.texasbar.com/2015/10/articles/articles/civility-in-lawyers-writing/
Thu, 01 Oct 2015 13:00:33 +0000http://blog.texasbar.com/?p=4406Continue Reading]]>This article originally appeared in two parts in the Spring and Summer issues of the Missouri Bar’s quarterly magazine, Precedent. Reprinted with permission of the Missouri Bar and the author.

A few years ago, American Bar Association President Stephen N. Zack decried the legal profession’s “continuing slide into the gutter of incivility.”[i] An ABA resolution “affirm[ed] the principle of civility as a foundation for democracy and the rule of law, and urge[d] lawyers to set a high standard for civil discourse.”[ii]

The ABA initiative echoes federal and state courts that call civility “a linchpin of our legal system,”[iii] a “bedrock principle,”[iv] and “a hallmark of professionalism.”[v] Justice Anthony M. Kennedy says that civility “defines our common cause in advancing the rule of law.”[vi] Chief Justice Warren E. Burger called civility a “lubricant[] that prevent[s] lawsuits from turning into combat.”[vii] “Courtesy is an essential element of effective advocacy,” agrees Justice John Paul Stevens.[viii]

The adversary system’s pressures can strain the tone and tenor of a lawyer’s oral speech, but the strain on civility can be especially great when lawyers write. Words on paper arrive without the facial expression, tone of voice, body language, and contemporaneous opportunity for explanation that can soothe face-to-face communication. Writing appears cold on the page, dependent not necessarily on what the writer intends or implies, but on what readers infer.

This article is in three parts. Part I describes two manifestations of incivility, a lawyer’s written derision of an opponent, and a lawyer’s written disrespect of the court. Part II describes how either manifestation can weaken the client’s cause. Part III describes how incivility in writing can also compromise both the lawyer’s own personal enrichment and the lawyer’s professional standing among the bench and bar.

I.

“[C]ivility is not a sign of weakness,” President John F. Kennedy assured Americans in his Inaugural Address in 1961 as he anticipated four years of faceoffs with the Soviets.[ix] “Civility assumes that we will disagree,” says Yale law professor Stephen L. Carter, “It requires us not to mask our differences but to resolve them respectfully.”[x] The advice prevails, regardless of whether incivility pits lawyer on lawyer, or whether it pits lawyer against the court. Each of the two manifestations of incivility warrants a representative example here.

Lawyer-On-Lawyer Incivility

When Chief U.S. Bankruptcy Judge Terrence L. Michael (N.D. Okla.) recently considered whether to approve a compromise in In re Gordon, the contending lawyers in the Chapter 7 proceeding detoured into written lawyer-on-lawyer invective.[xi]

In a filing to support its motion to compel discovery from the bankruptcy trustee in Gordon, the lawyer for creditor Commerce Bank charged that the trustee and the United States had engaged in “a pattern . . . to avoid any meaningful examination of the legal validity of the litigation plan they have concocted to bring . . . a series of baseless claims.”[xii]

“[T]hey know,” the bank’s lawyer continued, “that a careful examination of the process will show the several fatal procedural flaws that will prevent these claims from being asserted.”[xiii] “Only by sweeping these issues under the rug will the trustee be able to play his end game strategy of asserting wild claims . . . in hopes of coercing Commerce Bank into a settlement (which the Trustee hopes will generate significant contingency fees for himself).”[xiv]

The trustee charged that the bank’s lawyer had impugned his character with accusations that he had compromised his fiduciary obligations for personal gain. Judge Michael denied the trustee’s sanctions motion on procedural grounds, but he chastised the bank’s lawyer because “personal and vitriolic accusations have no place as part of a litigation strategy.”[xv] The court instructed the parties to “leave the venom at home”[xvi] because “[w]hether you like (or get along well with) your opposition has little to do with the merits of a particular case.”[xvii]

Some courts have moved beyond instruction. In the exercise of inherent authority, these courts have sanctioned lawyers, or have denied attorneys’ fees, for incivility.[xviii] Some courts have even sanctioned the client who, having retained the lawyer, bears some responsibility for the lawyer’s conduct.[xix]

Lawyer-on-Court Incivility

Gordon’s written recriminations pitted counsel against counsel, but lawyers sometimes venture into incivility that disrespects judges and the court. Every appeal involves at least one party who believes that the lower court reached an incorrect outcome, but few judges deserve criticism for incompetence. Lawyers for aggrieved parties are more likely to receive a serious hearing (and more likely to perform their roles as officers of the court) by firmly, forcefully, but respectfully arguing a judge’s good faith misapplication of the law to the facts, rather than by resorting to insinuations about the judge.

Insinuations surfaced during the federal district court’s review of the magistrate judge’s report and recommendation in In re Photochromic Lens Antitrust Litigation.[xx] A party’s lawyer contended that the magistrate judge was “misled” concerning relevant legal standards, and that the judge made her recommendation without “any reference to the voluminous underlying record.” The lawyer further contended that she “conducted no analysis, much less a ‘rigorous analysis,’” and decided “based on no evidence, a superficial misreading of the evidence, or highly misleading evidence.”[xxi]

The district court approved the magistrate judge’s recommendation and report in significant part, but did not stop there. The court also publicly reprimanded the lawyer for crossing the line: “It is disrespectful and unbecoming of a lawyer to resort to such language, particularly when directed toward a judicial officer. Its use connotes arrogance, and reflects an unprofessional, if not immature litigation strategy of casting angry aspersions rather than addressing the merits . . . in a dignified and respectful manner.”[xxii]

II.

Incivility’s Costs to the Client

Lawyers whose writing descends into incivility risk weakening the client’s cause, perhaps irreparably. The Chief Justice of the Maine Supreme Court confides that “[a]s soon as I see an attack of any kind on the other party, opposing counsel, or the trial judge, I begin to discount the merits of the argument.”[xxiii] As they determine the parties’ rights and obligations by applying fact to law, perhaps judges sometimes react this way because civility projects strength and incivility projects weakness. “Rudeness is the weak man’s imitation of strength,” said philosopher Eric Hoffer.[xxiv]

The lawyer’s first step toward civility may be an early candid talk with the client, who may feel grievously wronged and may believe that the surest path to vindication is representation by a junkyard dog waiting to be unleashed. The client’s instincts may stem from movies and television dramas, whose portrayals of lawyers sometimes sacrifice realism for entertainment.

Without this early talk, the client may mistake the lawyer’s civility for meekness, and courtesy for concession. The client needs to understand that a take-no-prisoners strategy can disgust any decision maker who shares the sensibilities expressed by the Justices and judges quoted above. One Illinois trial judge recently had this advice for lawyers: “No judge has ever been heard to endorse or encourage the use [of mean-spirited] writing. Not one. You may feel better writing it and your client may feel better reading it, but your audience is the judge, and judges abhor it.”[xxv] Judicial abhorrence scores the client no points.

Justice Sandra Day O’Connor says that, “It is enough for the ideas and positions of the parties to clash; the lawyers don’t have to.”[xxvi] “It isn’t necessary to say anything nasty about your adversary or to make deriding comments about the opposing brief,” adds Justice Ruth Bader Ginsburg, who says that such comments “are just distractions. You should aim to persuade the judge by the power of your reasoning and not by denigrating the opposing side. . . . If the other side is truly bad, the judges are smart enough to understand that; they don’t need the lawyer’s aid.”[xxvii]

Judges are not alone in advancing civility for projecting strength. John W. Davis, perhaps the 20th century’s greatest Supreme Court advocate, understood his judicial audience. “Controversies between counsel,” he wrote, “impose on the court the wholly unnecessary burden and annoyance of preserving order and maintaining the decorum of its proceedings. Such things can irritate; they can never persuade.”[xxviii]

III.

Incivility’s Costs to the Lawyer

Aside from compromising the client’s interests, incivility can damage the lawyer’s own personal enrichment and professional standing. Incivility “takes the fun from the practice of law,” says Judge Duane Benton of the U.S. Court of Appeals for the Eighth Circuit.[xxix] “Being a lawyer can be pleasant or unpleasant,” explains Judge William J. Bauer of the U.S. Court of Appeals for the Seventh Circuit, who adds that “[w]hen we treat each other and those with whom we have professional contact with civility, patience and even kindness, the job becomes more pleasant and easier.”[xxx]

Moving from the lawyer’s personal enrichment to professional standing, the Preamble to the ABA Model Rules of Professional Conduct recites “the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.”[xxxi] Model Rule 8.4(d) operates against “conduct that is prejudicial to the administration of justice.”[xxxii]

The Model Rules’ spotlight on professional obligation is fortified by commands for civility in federal and state court rules;[xxxiii] state admissions oaths;[xxxiv] and unofficial codes that some professional organizations maintain for their member lawyers.[xxxv] The ABA Model Code of Judicial Conduct imposes reciprocal obligations of civility on judges in the performance of their official duties.[xxxvi]

These professional commands and expectations mean that descent into incivility can damage the lawyer’s reputation with judges and others lawyers. The damage seems greatest when the court’s opinion calls out the offending lawyer publicly, either by name or by leaving the lawyer readily identifiable from the appearances listed atop the opinion. In the two decisions featured in Part I of this article, the offenders may have had belated second thoughts when the court shined the spotlight.

“Just as lawyers gossip about judges and most litigators have a ‘book’ on the performances of trial judges, we judges keep our own book on litigators who practice before us,” confides one federal district judge.[xxxvii] During my judicial clerkship, I learned early that when many judges pick up a brief or other submission, they look first for the writer’s name. A writer with a track record for civil, candid, forceful advocacy gets a head start; a writer who has fallen short must make up lost ground.

Incivility brings tarnish, but civility brings luster. Justice Kennedy calls civility “the mark of an accomplished and superb professional.”[xxxviii] A veteran federal district judge concurs: “The lawyers who are the most skillful tend to be reasonably civil lawyers because they project an image of self-confidence. They don’t have to stoop to the level of acrimony.”[xxxix]

Even without public rebuke or other disdain from the bench, word gets around. In cities, suburbs and outstate areas alike, the bench and bar usually remain bound by mutual relationships, word of mouth, recollections, and past experiences. Lawyers with sterling reputations for civility stand a better chance of receiving civility in return. Sooner or later, for example, a lawyer may need a stipulation, consent to a continuance, or similar accommodation from opposing counsel or the court. Like other people, lawyers get what they give.

In a challenging employment market, maintaining a reputation for civility can also enhance a lawyer’s professional mobility. Lawyers sometimes receive appealing lateral job offers from a nearby public- or private-sector adversary who respects not only their competence, but also their professionalism. Being smart is not enough. Plenty of lawyers are smart, but fewer lawyers earn respect for genuine professionalism as they seek the best possible outcomes for their clients. Because few Americans (including few lawyers) spend their entire careers with their first employer, enhanced lateral mobility can be a significant reward for unswerving commitment to an honorable law practice.

As members of a largely self-governing profession devoted to the rule of law,[xl] lawyers are judged by expectations sometimes higher than the expectations that judge other professionals. President Theodore Roosevelt said that “[c]ourtesy is as much a mark of a gentleman as courage.”[xli] “The greater the man, the greater courtesy,” wrote British Poet Laureate Alfred, Lord Tennyson in his epic poem, Idylls of the King.[xlii]

The greater the lawyer too.

Conclusion: The Will to Win

“All advocacy involves conflict and calls for the will to win,” said New Jersey Supreme Court Chief Justice Arthur T. Vanderbilt, but the will to win is only one ingredient of professionalism. Advocates, he added, also “must have character,” marked by “certain general standards of conduct, of manners, and of expression.”[xliii] One prime marker of an advocate’s character is civility.

Civility in advocacy resembles sportsmanship in athletics. Sportsmanship presumes that each athlete wants to win within the rules of the game; a sportsmanlike athlete who does not care about winning should not play. Civility similarly presumes that each advocate wants to win within the rules of professionalism; a civil advocate who does not care about winning should not represent a client. Civility and forceful advocacy, like sportsmanship and forceful athleticism, define the total package.

Douglas E. Abrams, a University of Missouri law professor, has written or co-authored five books. Four U.S. Supreme Court decisions have cited his law review articles.

__________________________________________________________

[i] James Podgers (ed.), From Many Voices, a Call for Public Civility, 97 A.B.A.J. 58, 58 (Sept. 2011) (quoting Zack).

Editor’s note: The following story is reprinted with permission from the Fall 2013 Texas Entertainment and Sports Law Journal. Read more from the Journalhere.

Once upon a time, if you mentioned the topics of “social media” and “contract clauses” in the same sentence to entertainment industry big shots, they would associate it with a way to limit entertainers from discussing their projects on Facebook, Twitter, and other social networking platforms.

As recently as October 2009, the Hollywood Reporter was revealing that “there’s a growing number of studio deals with new language aimed specifically at curbing usage of social-media outlets by actors, execs, and other creatives.”1

The article further reported that, due to concern about confidential information being leaked out over social networks, studios like Disney and DreamWorks had added clauses requiring actors and others not to share information “via interactive media such as Facebook, Twitter, or any other interactive social network or personal blog.”2

The overriding concern, apparently, was related to celebrities who jumped the gun on official announcements before studio spinmeisters had a chance to break the news; one example given was Paula Abdul, who announced her decision to leave “American Idol” via Twitter and surprised Fox executives.

But fast forward a few years to 2013, and now studios, agents, and talent in the entertainment and sports realms regularly sit down to negotiate how much social media activity the actor or athlete will be required to engage in as a way of supporting his or her work and burnishing a brand image. What accounts for the new change in attitude?

For one thing, the reality of social media’s inexorable spread has sunk in. According to the latest Pew Internet Study, 72 percent of all adult Americans who are online have at least one social networking profile.3 One out of every seven minutes spent online is spent on Facebook alone, while one out of every five page views online occurs on the social networking giant.

And it’s not just Facebook and its 1.12 billion users worldwide that’s captivated society; YouTube serves over 1 billion visitors each month. YouTube is available on over 350 million mobile devices, and each week 100 million people engage in some form of social action on the video-sharing site, such as comments, shares, or “likes.” Twitter, which was processing 5,000 tweets per day within a year of its founding, was processing over 400 million tweets a day by late 2012.

The reach and influence of social media has been embraced by corporate America as well. According to a study by the University of Massachusetts-Dartmouth, Fortune 500 companies are paying increasing attention to social media. Seventy-seven percent of the Fortune 500 maintain active Twitter accounts, while 70 percent have a Facebook page and 69 percent own YouTube accounts.4

Some of the leading companies on Twitter and Facebook are entertainment industry titans like Walt Disney, which boasts over 44 million Facebook fans and nearly 2 million followers on Twitter.5 While other social networks aren’t quite as popular with the Fortune 500 crowd, they are still very present.

Forty-four of the Fortune 500 have accounts on Instagram and Foursquare as well, while 45 of them are on Pinterest. As the study points out, corporate America “now seems comfortable and even excited with its newfound ability to engage its vendors, partners, customers, and others in ways that could not have been imagined when most of their corporations began. Judging by the increased use of tools, fans, and followers, they are making some very powerful new connections.”6

Another reason for the new emphasis on ensuring that actors, recording artists, athletes, and other celebrities are contractually bound to promote themselves, their projects, and the brands with which they are associated via social networking comes down to the value not only of the celebrities themselves, but of the people who follow them.

According to a 2011 Nielsen Study, 64 percent of adult U.S. Internet users who follow a celebrity also follow a brand—making the celebrity fan four times more likely to follow a brand than the average U.S. adult online.7

In addition, the study found that those fans were more likely to offer advice and share opinions with fellow online consumers, particularly in the case of entertainment subjects. Thirty-two percent of celebrity fans provide advice on movies (making them 44 percent more likely to do so than the average online user), and 28 percent offer guidance on music and television choices.8

Of course, all is not completely rosy when it comes to actors or athletes speaking out on social media. The celebrity can become embroiled in scandal, such as Paula Dean, causing an empire of product endorsements, television shows, and book deals to crumble almost overnight.

Sometimes, it’s the personality’s own social media activities that can ignite the flames of controversy, such as a young Disney star undermining her carefully cultivated family friendly image with ill-timed “selfies” on Twitter or Instagram, or NFL star Rashard Mendenhall’s controversial tweets about Osama Bin Laden and 9/11 (more on that later).

There is also the ever-present danger of a figure engaging in a social media faux pas related to the product he or she is endorsing. Former Pepsi spokesperson Britney Spears was dumped by the soft drink company after the pop star was photographed in public drinking Coca-Cola, while Helena Bonham Carter’s relationship with Yardley Cosmetics ended after the actress’ online revelation that she doesn’t wear makeup.

The virtually instantaneous exposure and, in some cases, embarrassment that can accompany a celebrity’s missteps thanks to social networking tools is yet another reason to address and manage that individual’s activity through a contractual provision. Such precautions might have prevented one recent social media flub, when BlackBerry’s newly appointed “global creative director,” singer/songwriter Alicia Keys, tweeted about her new endorsement—from an iPhone.

Another potential issue that needs to be addressed in any celebrity’s contract is the potential exposure from paid endorsements made on social media. In May 2013, reality star Kim Kardashian posted on Twitter: “Pregnancy lips…@EOS to the rescue! LOL.” along with a photo of her using EOS lip balm. Although the tweet did not make it clear if she was being paid or not for her endorsement, Ms. Kardashian is among a growing number of celebrities who can command fees of up to $20,000 for a single tweet to their millions of followers on social media.

Others are more forthcoming: after actor Michael Ian Black tweeted a plug for Dos Equis, he followed up with a tweet to his 2 million Twitter followers that the beer company had paid him “thousands of dollars to run it.”9

When pop star Miley Cyrus was traveling to promote her latest album, she tweeted “Thanks @blackjet for the flight to Silicon Valley!” to her 12 million followers on Twitter. Although the post didn’t disclose her status as a paid endorser for the Silicon Valley start-up company that arranges for private jet travel, Blackjet CEO Dean Rotchin later acknowledged “she was given some consideration for her tweet.”10

Ashton Kutcher, star of TV’s “Two and a Half Men” has also faced criticism for shamelessly plugging tech companies that he invests in (like Foursquare and Flipboard) on the CBS show, without disclosing his financial ties.

The topic of celebrity social media endorsements has received heightened scrutiny in recent months, when even D-list celebrities and reality TV personalities are being paid to utilize their fame in 140 characters or less; “Jersey Shore” star Snooki, for example, commands up to $7,900 per tweet, while faded “Malcolm in the Middle” actor Frankie Muniz pays a few bills at $232 a tweet.11

Some of that scrutiny is coming from the Federal Trade Commission. Under FTC guidelines, companies and the celebrities they sponsor risk being deceptive by not disclosing that such social media postings are, in fact, advertisements.

Mary K. Engle, associate director of the Advertising Practices Division at the Federal Trade Commission, sums it up this way: “In a traditional ad with a celebrity, everyone assumes that they are being paid.12 When it’s not obvious that it is an ad, people should disclose that they are being paid.”

While the FTC has yet to assess fines against a celebrity for not disclosing his or her financial connection to a company, attorneys for both the endorser and the company receiving the plug need to be aware of the risk, and address it contractually. Engle suggests using the word “ad” in front of the tweet, pointing out that “it only takes up two extra characters.”13

The FTC updated its consumer protection rules for online activities in March 2013, taking specific aim at celebrity tweeters.14 These guidelines make it clear that the FTC holds marketing companies and their celebrity endorsers to the same standards with social media and other online ads as they do with more traditional media. Full disclosure is mandatory, even in a 140-character tweet. The agency suggests flagging Twitter ads by including “Ad:” at the beginning or the word “sponsored” at the end of the post.

And the FTC also makes it clear that companies need to be conscious of the disclosures’ locations, ensuring that they are visible to consumers viewing them on a smartphone; if the disclosure won’t fit within the constraints of a social network ad or mobile ad, then according to the FTC the ad copy needs to be altered so as not to require a disclosure.15

The FTC even provided hypothetical scenarios for celebrity Twitter endorsements in its new rules. Using a fictional celebrity named “Juli Starz,” the FTC presented her posting the tweet “Shooting movie beach scene. Had to lose 30 lbs in 6 wks. Thanks Fat-Away Pills for making it easy,” along with a URL to the product’s site.

According to the FTC, such an endorsement would violate its rules, since it doesn’t specify that it’s an ad, and doesn’t have qualifying language saying how likely (or unlikely) it was that other consumers could expect the same kind of result.

Even adding the “#spon” hashtag at the end, to show that it’s a sponsored posting, would not pass FTC muster. According to the agency, the tweet should be marked clearly as an ad and include the typical results for any product.16 If the FTC finds advertising to be misleading, it can assess civil penalties ranging from the thousands of dollars to the millions; in addition, some advertisers have been ordered to issue full or partial refunds to consumers.

Besides the understandable need to stay within the FTC guidelines, keeping a tight rein on an actor or athlete’s social media postings is also a good idea to avoid bringing yet another omnipresent clause into play—the morals clause.

In the aftermath of the tsunami in Japan, actor/comedian Gilbert Gottfried made insensitive and tasteless jokes about the disaster on Twitter, resulting in his termination as the voice of the AFLAC duck by the insurance giant. In Australia, Olympic gold medal-winning swimmer and Jaguar spokesperson Stephanie Rice tweeted a homophobic comment after a swim meet in South Africa. Despite a later apology for the offending tweet, the car company dropped her as a spokesperson.

However, tweets by Pittsburgh Steelers running back Rashard Mendenhall shortly after the May 1, 2011, killing of Osama Bin Laden put a spotlight on morals clauses and social media. Mendenhall tweeted: “What kind of person celebrates death? It’s amazing how people can HATE a man they never even heard speak. We’ve only heard one side…” And of the 9/11 attacks, the player tweeted, “We’ll never know what really happened. I just have a hard time believing a plane could take a skyscraper down demolition style.”17

The public uproar over the tweets resulted in Hanesbrands terminating Mendenhall’s endorsement contract, citing the morals clause in it. At first blush, one would have to say that legally the running back was likely to be tackled for a loss. After all, morals clauses are routinely upheld by courts, and there was no reason to believe that results would be different in the use of social media.

For example, in the 2010 case of Galaviz v. Post-Newsweek Stations, San Antonio, Inc., a federal court rejected the appeal of a TV news reporter fired following her arrest in a domestic dispute.18 And in Nader v. ABCTV, Inc. in 2005, the court upheld the termination of an “All My Children” soap opera actor after his arrest for cocaine possession and resisting arrest.19

A typical morals clause might read something like this:

If Artist has committed or commits any act which is a felony, or a misdemeanor of moral turpitude, or commits an act which offends the community or any segment thereof and/or public morals and decency that may, in the reasonable judgment of the Advertiser, cause a diminution in the value of the Advertiser’s commercial association with Artist and which is of sufficient magnitude to require, for commercial reasons, the discontinuance of the Commercialization of Artist’s persona hereunder, then Advertiser shall have the right to immediately terminate this Agreement on written notice to Artist.

In the age of social media, however, there are several challenges when it comes to enforcing such a morals clause; because of these, sponsors are well advised to incorporate a specific reference to communications using social media.

One such challenge is the difficulty in measuring brand diminution and pinpointing a particular tweet or post as the cause. Another challenge is proving that the actor or athlete did in fact author the offending tweet or post, a potential obstacle when many celebrities have someone writing their tweets or otherwise “managing” their social media presence, and where the first defense of a number of public figures confronted with a offensive tweet is to say “my account was hacked.”

In the case of Rashard Mendenhall, his approach was a variation on “the best defense is a good offense.” He filed suit against Hanesbrands in July 2011 in U.S. District Court in North Carolina for breach of contract. Mendenhall’s argument was a novel one; pointing to previous offensive or controversial tweets he had made (which, among other things, included comments against women and ones comparing the NFL to slavery), he argued that Hanesbrands had waived its right to use his tweets as grounds to terminate the contract since he had previously tweeted so many offensive things that Hanesbrands didn’t object to.20

The argument survived a motion to dismiss by Hanesbrands, and ultimately the lawsuit was settled.

The lesson to be learned from examples like the Mendenhall case and others is best summed up by Professor Porcher Taylor of the University of Richmond: “Every celebrity endorsement contract of any kind in the future must have a Twitter/Social Media clause … I will be so bold as to state that the failure to not have such a clause would be tantamount to endorsement contract drafting malpractice.”21

It is advice that sports and entertainment agents, movie studios, and marketers appear to be heeding. According to an article in Advertising Age, Peter Hess (co-head of commercial endorsements for Creative Artists Agency) says more and more social media guarantees are being written into celebrity contracts. Hess says, “We’re starting to have in negotiations, ‘We’d like to include X number of tweets or Facebook postings.’ It’s similar to traditional advertising—instead of two commercials, now we want two tweets.”22

Indeed the importance of a robust social media following has not been lost on an entertainment industry faced with declining box office revenue, online downloads that have decimated the recording industry, and online fan bases that can alter a television program’s future.

An artist’s following on social media can mean the difference in casting decisions (Rihanna was allegedly cast in the movie “Battleship” thanks in part to her 26 million Twitter followers) or even getting a project made (witness the Kickstarter campaign that crowdsourced funding for a “Veronica Mars” movie). As a New York Times analysis observed, “After largely ignoring social media—allowing fake Facebook pages to proliferate, sticking with tried-and-true publicity stops like ‘Entertainment Tonight’—stars and agents are realizing en masse that they need to get on that train.”23

In order to capitalize on and manage this increasingly important social media presence, the entertainment industry has turned to various social media start-ups. One of the best known is theAudience, formed by former Disney executive Oliver Luckett. TheAudience reaches over 800 million fans each month, publishing thousands of pieces of content on social media on behalf of over 300 accounts.24 Its clients include record labels, studios, and even the Coachella music festival as well as actors like Hugh Jackman, Mark Wahlberg, and Charlize Theron and recording artists like Usher and Pitbull.

Another prominent company that manages stars’ digital presence is WhoSay, which counts Tom Hanks, Shakira, Ellen DeGeneres, and Sofia Vergara among its clients. Other companies that manage celebrity brands across multiple social media platforms include ThisMoment, Digital Media Management and Crowd Factory.

Such companies have sprung up in part due to a recognition of both the marketing power of social media as well a sense that—with studio contracts requiring actors to use their “best efforts” to use social media—social media efforts are too important to be entrusted to the celebrities themselves or even just the studios.

The juggernaut that is social networking has already made its presence felt by consumers everywhere and been embraced by corporate America. With this increasing recognition of social media’s importance, addressing an actor’s or athlete’s activities on platforms like Twitter and Facebook in the context of his or her contractual obligations has become a necessity.

John G. Browning is a partner in the Dallas office of Lewis Brisbois Bisgaard & Smith, where he handles civil litigation in state and federal courts, in areas ranging from employment and intellectual property to commercial cases and defense of products liability, professional liability, media law, and general negligence matters. Browning received his Juris Doctor from the University of Texas School of Law in 1989. He is the author of the book "The Lawyer’s Guide to Social Networking, Understanding Social Media’s Impact on the Law."

This issue of the Texas Bar Journal explores how the Texas legal community is working to improve Texas’ child welfare system and how attorneys can help the state’s most vulnerable children.

]]>September Texas Bar Journal focuses on wellness issueshttps://blog.texasbar.com/2010/09/articles/texas-bar-journal/september-texas-bar-journal-focuses-on-wellness-issues/
Thu, 09 Sep 2010 17:09:32 +0000http://localhost/texasbarblog/2010/09/09/september-texas-bar-journal-focuses-on-wellness-issues/Continue Reading]]>This month’s Texas Bar Journal focuses on strategies for lawyers dealing with anxiety, mental health, substance abuse and addiction, and depression. One important highlight is The Texas Lawyers Assistance Program (TLAP) and the help it can offer lawyers in need. TLAP provides crisis counseling and referrals for lawyers, judges, and law students coping with substance use disorders and mental health issues. Find out more in the TBJ article. To get information or to seek help, you may reach TLAP at 800-343-8527 or visit their web page at www.texasbar.com/tlap.
]]>Trial Tips from Harry Reasonerhttps://blog.texasbar.com/2010/06/articles/people/trial-tips-from-harry-reasoner/
Thu, 24 Jun 2010 13:11:59 +0000http://localhost/texasbarblog/2010/06/24/trial-tips-from-harry-reasoner/Continue Reading]]>The summer edition of News for the Bar, the newsletter of the State Bar Litigation Section, includes trial tips from and an interview with legendary Houston lawyer Harry Reasoner. The longtime Vinson & Elkins partner recently took over as chair of the Texas Access to Justice Commission. Among Reasoner’s kernels of wisdom:

I think it’s very important to learn from the lawyers with whom you work. But never miss an opportunity to learn from your opponents — to think about what you would have done if you were in their place.

For more information about the Litigation Section, click here. For more information about the Access to Justice Commission, click here.